165 Wis. 179 | Wis. | 1917
Lead Opinion
It seems clear that tbe right to a change of venue in this state is regulated by statute. This is declared by the decisions in this court on the subject. The effect of such decisions is stated in French v. State, 93 Wis. 325, 335, 67 N. W. 106:
“The right to a change of venue depends entirely upon the statute. It is not guaranteed by Const, art. I, sec. I, or any other provision of the constitution. As the right exists only by virtue of the statute, a change of venue can be had only upon the terms the statute prescribes.”
See Baker v. Slate, 56 Wis. 568, 14 N. W. 118; Boldt v. State, 72 Wis. 7, 38 N. W. 177; Oborn v. State, 143 Wis. 249, 126 N. W. 737.
The difficult Question here presented involves the construction of the act establishing the municipal court of Racine county (sec. 10, ch. 72, Laws 1897). The original act provides :
“The provisions of law applicable to changes of venue in the circuit courts of this state, shall be applicable to said municipal court, except that when the venue of any action shall be so changed, it shall be changed to the. circuit court of Racine county; and such change of venue shall not prevent the granting by said circuit court of a further change of venue as provided in section 2622, of the revised statutes of this state.”
This act also provides that in case any “person charged upon indictment or information with a criminal offense shall have procured a change of venue to the circuit court of Racine county, ...” the party shall be committed or held to bail in circuit court, and the papers and copy of record and proceedings, properly certified, shall be transmitted to the circuit court, “which shall then have full jurisdiction of
This brings us to the question of the effect of the order of November 26, 1916. The court denied the applications of defendants for a change of the place of tidal “without prejudice, however, to said defendants, and each of them, to renew said motions if it shall appear on the voir dire that the defendants, and each of them, cannot have a fair and impartial trial in Racine county, Wisconsin.” It is apparent that the court has not refused and does not refuse to act in the proceeding in the future. While the court in terms denies the applications, it expressly does so with the intent to further consider the matter “on the voir dire.” The substance and effect of the ruling is that the court declared that it does not “appear to the satisfaction of the court, by affidavits, that a fair and impartial trial cannot be had” in Racine county, but that he will consider the matter further in the light of the
By the Court. — It is so ordered.
Concurrence Opinion
I concur in tbe final result in this case and agree that tbe writ should be quashed upon either tbe
The effect of the majority opinion on this point is that a defendant originally proceeded against in that court may have, as a matter of right, a change of venue to the circuit court-for Racine county on account of the prejudice of the judge of such municipal court and thereafter a change of venue from the circuit court, as a matter of right, upon a satisfactory showing of the prejudice of the people. In other words, that such a defendant, unlike a defendant in any other court, may have, as a matter of right, two changes of venue in a criminal action. A defendant first .proceeded against in a circuit court outside of Racine county is driven in the first instance to elect one of two grounds for a change of venue: (1) either for prejudice of the presiding judge, or (2) that of the people; and when he has so elected he can have, as a matter of right, no other or further change. A defendant proceeded against in the municipal court of Racine county may have, as a matter of right, a change for the prejudice of the judge of such court, and then again in the circuit court for Racine county to which he is sent, a second change, as a matter of right, for the prejudice of the people.
Provisions for change of venue are to be found in two separate chapters: ch. 119, Stats., entitled “The Place of Trial of Civil Actions,” which includes secs. 2622, 2623, 2625; and again under ch. 190, Stats., entitled “The Change of Venue in Criminal Cases,” .which includes secs. 4619 and 4680.
By sec. 9, ch. 72, Laws 1897, by which chapter the municipal court in question was first established, it is provided that the general provisions of law relative to circuit and justices’ courts and actions and proceedings therein, “in civil
Sec. 2622, Stats., provides for a change of the place of trial from the county wherein the action is brought “where there is reason to believe that an impartial trial cannot be had therein.” By sec. 4679, relating to criminal actions, it is provided, where a fair trial cannot be had, that the court “'may direct the person accused to be tried in some adjoining county where a fair and impartial trial can be had.”
Each of these sections has a provision for an absolute restriction to but one change of venue in each cause. If sec. 2622 is to be construed as governing both civil and criminal proceedings, then there was no need of sec. 4679. Eurther-more, see. 4679 is not limited to proceedings in circuit courts alone, but gives the power of such removal to the court before whom a cause is pending for an offense punishable by imprisonment in the state prison. Such a statute is general in its nature and would apply to all courts of record having criminal jurisdiction, and would apply to the defendants in this case unless changed by the acts establishing such court.
In the case of Dietz v. State, 149 Wis. 462 (136 N. W. 166), on page 475 this court said, with reference to the denial of an application for a change of venue on the claim of prejudice on the part of the people of Sawyer county in an action in which an affidavit of prejudice had already been filed against the presiding judge, referring to sec. 4680, Stats., that there can be but one change of venue in a criminal action.
This broad language must also apply to these defendants unless a contrary intent can be found in the act in question.
The municipal court of Racine county is one created by
I cannot construe the act in question as overriding these considerations. It certainly does not do so by express language, and can only do so by a construction which seems to me to be an unnecessary strain upon legislative language.
As I read this act, the provisions in the first portion of sec. 5, ch. Ill, Laws 1899, for a change of venue, apply only to civil actions. This may be seen by its express reference to the statutes that govern such actions, viz. secs. 2621, 2622, and 2625, which are found in ch. 119, Stats., as above stated. It also appears by implication by the omission of any reference to ch. 190, such as secs. 4619 or 4680.
It is fair to assume that the legislature had these general laws in mind when it passed the acts creating this municipal court and by the context of the same intended that the change of venue which is limited to a removal to the circuit court for Racine county related to civil actions only under ch. 119 and leaving the criminal actions to be disposed of under ch. 190, relating to just that class of actions, and under secs. 4679 and 4680. This construction would acquit the legislature of the rather ungraceful task of disposing of such important questions by any circuitous method and would place a defendant in the municipal court of Racine county in no other or different position than one in any other court in the state.
That portion of the act quoted and italicised in the opinion, “except that when the venue of any action shall he so
I fail to see any weight that can be given to the construction of the majority from the language in the act that when a change of venue shall have been had in a criminal case to the circuit court for Racine county the record shall be transmitted and certified to the circuit court, “which shall then have full jurisdiction of the action.” This only makes clear and definite what undoubtedly would be definite and clear without it, viz. that when the circuit court gets jurisdiction it stands in the same situation as to that case that the municipal court did.
This view of the statute does not lessen any of the rights of the defendant. These rights can be protected in this instance as well as the rights of a defendant whose cause had been transmitted from an adjoining circuit to the Racine circuit and where it shall appear at any time that a fair and impartial trial cannot be had. In such event the court as a matter of necessity may, even on its own motion, take proper steps to assure to the defendants the fair and impartial trial that they are guaranteed under the constitution; just as the trial court exercised what was denominated “an extraordinary power” in discharging the jury and summoning a new panel, even after testimony had been taken on the trial of'a defendant accused of murder, in the case of Hedger v. State, 144 Wis. 279, 298, 128 N. W. 80.
I am authorized to state that Mr. Justice Keewin joins with me in this opinion.